BY SARAH STEPHEN
@Five-year-old Tania Singh was born in Australia in 1998, a year after her parents arrived from India seeking asylum. She has never been to India and speaks no Hindi. She goes to kindergarten and loves cricket. Yet she will be deported along with her parents if their asylum claim is unsuccessful.
A 1986 amendment to the Nationality and Citizenship Act denied citizenship to children born in Australia to non-permanent residents. Singh is challenging the amendment in a bid to remain in Australia.
On September 1, High Court Justice Michael Kirby sent Singh's case to the full bench of the High Court, on a date yet to be set. Singh's barrister Bruce Levet, working for free, argues that the Australian constitution doesn't explicitly give the government the power to deny citizenship to someone born here.
Levet told ABC radio's The World Today on September 2: "She hasn't crossed national boundaries, and we would say she can't be said to have immigrated to Australia on that basis — she's natural born."
From January 29, 1949 (when Australian citizenship began), until August 20, 1986, children born in Australia automatically acquired citizenship at birth. The only exceptions were those born to diplomatic staff and "enemy aliens".
In 1986, this principle was reversed by the Hawke Labor government. Passed in the wake of the 1984 hysteria about "too many" Asian immigrants and in the midst of a severe dip in the economy, the change was accompanied by a budget which made major cuts to English-language courses.
The 1986 law even denies citizenship to children born to asylum seekers, if they are eventually denied refuge. This increases the risk of making people stateless: a person's birth in Australia may hinder their acquisition of citizenship elsewhere.
The restriction of citizenship rights has been mirrored in many wealthy countries as their requirements for mass immigration began to diminish in the 1980s.
The British government led by Margaret Thatcher brought in a revised nationality law in 1983 limiting citizenship to those born of at least one British citizen parent.
In France, where the 1789 revolution established the principle of citizenship by birthplace, laws were passed in 1993 rolling this back.
The hearing of Singh's case will be the first time the 1986 legislation has faced legal challenge. Levet believes the implications of the case are huge. "There are thousands of children born to parents who are in detention or applying for refugee status, who have grown up here as Australians, but face being sent away".
Singh's family will have a limited number of options if the legal challenge is successful. If she is found to have a right to Australian citizenship by virtue of her birth in Australia, it will not automatically follow that her family will be able to stay in Australia as well. They will need to apply for family reunion visas, a category that has been progressively squeezed so that there is a waiting list of many decades.
From Green Left Weekly, September 10, 2003.
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